Al Smith - December 27, 2005
Montana Trial Lawyers Association
Vaccine Immunity
KUFM Commentary
December 27, 2005
Al Smith, Montana Trial Lawyers Association
Vaccine Immunity - Sleaze & Deceit in DC
As the U.S. Congress wrapped up its business for 2005, they gave me reason
to be thankful that the Montana Constitution has provisions to prevent our
state legislature from succumbing to the sleazy and deceitful tactics that
has become the usual course of business in Congress. One of those Montana
provisions prohibits proposed bills from dealing with more than one subject
matter. It’s too bad our U.S. Constitution doesn’t have a similar
provision, because it is painfully obvious that Congress cannot limit itself.
One of the last bills up for a vote in 2005 was the must-pass Department of
Defense Appropriations conference report - if it didn’t pass, the
military’s money slowed to a trickle. For the Bush administration and some
in Congress this was a great opportunity - attach other, non-military
provisions to the bill. That way legislation that cannot pass on its own
merits gets passed, with the added bonus of not having to hold committee
hearings or floor debates that will arouse unwanted public
attention. Another extra is that those in Congress that object,
substantively or on principle, to the non-military provisions can get
labeled as unpatriotic and accusations of failing to support the troops get
thrown about.
One of those non-military provisions opened up oil drilling in ANWR - the
Arctic National Wildlife Refuge. Members of the Senate were finally able
to remove that provision. One of the non-military provisions that stayed
was for vaccine liability.
Using scare tactics of an impending flu pandemic, U.S. Senator Bill Frist
slipped a controversial provision into the Defense Appropriations bill that
gives sweeping and unprecedented immunity to foreign and domestic drug
companies for the manufacture of vaccines. The provision grants these
corporations and their CEOs immunity even when they commit gross negligence
by putting dangerous and deadly drugs on the market. Frist’s provisions
give broad liability protections to vaccine manufacturers, even when they
commit gross negligence or engage in reckless misconduct. For instance,
Frist’s provision would protect drug companies even if they recklessly
included a live bird flu virus in the vaccine, and gave the contaminated
vaccine to the public, causing a pandemic that killed thousands.
It’s not the first time Frist has exploited national security to give the
drug industry massive protections. In 2002, Frist inserted protections for
Eli Lilly’s vaccine additive Thimerisol - a mercury linked to childhood
illnesses - into the Homeland Security bill at the last minute. Only after
a public outcry did Congress and Frist repeal the measure.
Frist has admitted that certain vaccines are unsafe, advising Capitol Hill
staffers in 2001 to not take the anthrax vaccine. Acknowledge that
vaccines may be unsafe and then tell the American people they have no
remedy if they are injured by unsafe vaccines - hypocrisy is second nature
to Frist. Do you think that the millions in contributions by drug
corporation CEOs to Frist and his Republican colleagues in the Senate helped?
The drug companies claimed that without immunity there would be no vaccine
production. But, public health officials at the National Institutes of
Health, Centers for Disease Control and National Vaccine Advisory Committee
all said last year that liability concerns had little or no effect on
vaccine production. According to two Harvard University professors, there
have been only 10 reported flu vaccine lawsuits over the last 20 years.
Vaccine manufacturers were investing in the vaccine market at a rapid pace
even without immunity from lawsuits. Sanofi Pasteur, had previously
announced: a $100 million contract with the U.S. to produce avian flu
vaccine; signed four additional pandemic-related contracts with the U.S.
government; and, began construction of a $150 million vaccine production
facility in Pennsylvania. Merck wrote in its annual 2004 report, “We are
rapidly building our capacity to successfully compete in … new vaccine
markets.” Last year Merck began construction of a vaccine manufacturing
facility in North Carolina. Glaxo Smith Kline also recently announced its
acquisition of a flu vaccine manufacturing company. In addition, the
company: has more than 1,000 scientists working on vaccine development;
said that it plans to launch five major new vaccines from its own research
over the next five years with a combined market potential of up to $18.3
billion a year; and said in its annual report in 2004, “The Vaccine
Business had a Strong Year.”
Eliminating the right of individuals to hold negligent drug companies
accountable removes an important incentive for drug companies to make safe
drugs – especially considering that some big drug companies have a track
record of putting their profits before the health and safety of the
public. Without committee hearings or debate, the provision eliminates
the right of individuals to hold drug companies that knowingly put
dangerous and deadly drugs on the market accountable.
Numerous organizations including those that represent men and women in our
military, public health organizations, first responders and the families of
people injured by bad vaccines spoke out vehemently against the
legislation. They had a common message: ensuring that the American people
are protected against a pandemic flu outbreak should be a top priority of
the government – and the best way to protect Americans is to produce safe
vaccines not provide the big drug companies with special protections.
Unlike previous vaccine liability statutes, this provision does not provide
for any compensation for people injured or killed by an unsafe vaccine. At
the very least Congress should adopt a program that provides reasonable
compensation to those injured or killed by vaccines protected by this
provision. Otherwise, first responders (Nurses, doctors, EMTs) and others
will refuse vaccination, which is exactly what happened when Congress
passed a Smallpox Emergency Personnel Protection Act that did not include
adequate compensation for first responders.
This is Al Smith for the Montana Trial Lawyers Association.
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